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Monday, November 26, 2012

Leading cases in U/S 138 N I Act

Leading cases in U/S 138 N.I.Act ( Negotiable Instruments Act )

Leading Case laws:

Absconder -Proclaimed offender -
Accused failed to appear before court – Wife and children refused to give his
whereabouts. – In such circumstances accused has to be treated as absconder –
accused left country – even then he is absconder. 2003 (2) CTC 17.

Inferior goods – invalid plea –
accused should let cogent evidence – accused would have intimated complainant
about rejection of goods by end user and would have asked to take goods back –
accused should true that stop payment notice given for other valid
causes. 2003 (1) CTC 282.

Partner – definition – person in
charge – person in charge must mean that the person should be in over all
control of the day today business of the firm – he should be a party to the
policy being followed by the company and yet not in charge of the business of
the firm – offence must be proved was committed with the knowledge and
connivance of the accused. 2003 (1) CTC 127 SC.

Promissory – promissory must be
in writing and there should be unconditional undertaking to pay. 2003 (1)
36.

Notice - returned
unclaimed - again send to another address after 15 days – valid –
complainant sent notice on 29-05-1999 – returned on 09-06-1999 as unclaimed -
complainant on coming to know that accused was available else where sent copy
of same notice on 24-06-1999 – period of limitations start after 15 days from
second. 2002 (4) CTC 335.

Petitioner failed to produce any
document to so that she is not direction of company – cannot quash. 2002
Crl.L.J. 3320 AP.

All the directors need not be
arrayed as accused – unless specific allegation against them. 2002
Crl.L.J. 3291 Ker.

Signature differs – accused
admitted – accused admitted his liability Under Section313 statement – no reply
to notice also - but the signature available in cheque not that of accused – no
proof of issuance of cheque – accused cannot be convicted. 2002 Crl.L.J.
3255 Ker.

Complaint by manager – valid –
complaint filed by manager of company – matter for trial – not liable to be
quashed. 2002 Crl.L.J. 171 AP.

Income Tax verification – Rs.20,
000/- or more should be paid by account cheque – borrower alone is liable- thus
the borrower as a class is found to be indulging in such practices – it is the
borrower who was found to be evading payment of tax. Compared to
the class containing of lenders, the class of borrowers can be said to be in a
position evade tax by adopting by devices. 2002 SC 2188.

Sentence with fine or
compensation alone valid – not all – when sentence imposed on accused consists
of imprisonment and fine – accused cannot be directed to pay compensation when
sentence included fine as form part. 2002 (3) CTC 703 SC.

Remission not applicable to NIA –
with regard to offences committed under central enactment (NI Act), central
Government is appropriate government to grant remission – remission granted
under state government order would not apply to offence under Section 138
NIA. 2002 (3) CTC 616.

Burden of proof on defendant – if
admits signature – Under Section 20 the holder in due course is entitled to
fill up the blank pronote – no plea no evidence can be let in – defendant
admitted his signature hence burden of proof on him. 2002 (3) CTC
598.

Absence of necessary averments in
complaint – directors discharged – mere allegation that directors are
responsible for failure to make payment of cheque amount is not sufficient for proving
offence Under Section141 (2) – not enough. 2002 (3) CTC 342.

Joint complaint in valid – joint
complaint by 2 or more persons in respect of different cause of action and
different offence – not maintainable – under Section 200 of Cr.P.C. 2002
Crl.L.J. 481. Ker.

Allegation – enough role of
partner not necessary - making specific allegation in complaint about active
participation of day today affairs – sufficient – not necessary to allege about
duties discharged by accused. 2002 Crl.L.J. 642.

Additional evidence under Section
391 Cr.P.C. valid – if not full up lacuna – accused plead cheque was issued in
respect of time bared debt – complainant filed petition under Section 391
Cr.P.C., for permission to adduce additional evidence to show that earlier
cheques had been issued by accused within 3 years within limitation – the said
cheques where in existence at the time of cross examination by accused before
trial court – no filling up of lacuna – petition valid. 2002 (3) CTC
161.

Amendment of pleadings - Order 6,
rule 17 - central rule is that a party is not to be allowed to set up a new
case or a new cause of action particularly when suit on new cause of action is
barred – negligence of party or lawyer or mistake in setting out the case can
be corrected – remission allowed on costs of Rs.5, 000/- each two bar
association and advocate association to procure law books to their
library. 2002 (3) LW 123.

Stop payment – attracts
138. 2002 (3) CTC 96.

Notice returned as intimation
served – deemed service accused has to prove non-service if any. 2002 (3)
CTC 96.

Different ink – not valid plea –
using of different ink need not necessarily mean that document is
altered. 2002 (2) CTC 203.

Blank pronote filed by holder –
valid – inchoate instruments – Section 20 enables holder of instrument to fill
up the blanks and negotiable instruments which are duly signed by drawer and
deliver to holder – promissory note which did not contain writing of drawer but
executed by drawee held to be valid. 2002 (2) CTC 140.

Presumption under Section 139 and
118 – rebuttal by proof and not by explanation – once facts necessary for
raising presumption is established – court has no option but to raise such
presumption in favour complainant which is of course rebuttal buy accused –
rebuttal should be by proof and not by explanation. 2002 (1) CTC
530.

Name mis spelled in cheque – not
invalid – name of payee and complainant differently spelled – return not on
that ground – valid. 2002 (1) CTC 530.

Alteration of date - valid –
cheques of year 1995 – dishonour – later by agreement drawer corrected the year
as 1996 and made necessary endorsement – valid under Section 138 – even if the
payee of the cheque altered the cheque validating or re-validating the same
with the consent of the drawer valid. 2001 (4) CTC 570 SC.

Borrowal 4 years back – cheque
now – valid. Plea of drawer that cheque was issued in respect of time
barred debt incurred 4 years prior to issuance of cheque – hence no liability –
plea rejected – balance sheet of payee so the balance year after year gives
fresh period of limitation. 2002 (1) CTC 484 SC.

Section 138 not made out then
Section 420 IPC can be drawn – quashing of complaint under Section 138 and 141
of NI Act – complaint dismissed by magistrate – High Court directs to take
cognizance under Section 120-B and 420 IPC – valid. 2001 SC 3512.

Sentence in default of
compensation – valid – Supreme Court observed that Section 431 Cr.P.C., only
prescribed that any money (other than fine) payable by virtue of an order made
under the court shall be recoverable as if it were fine – proviso to Section
431 states that if sentence directs that if that such offender shall be
imprisoned in default of payment of fine and etc., Hence order directing
imprisonment in default of fine is valid. 2002 (1) CTC 315 SC.

Quantum of sentence – if amounts
had been so paid there would have been justification for plead by sentence –
sentence awarded should be such nature to give proper effect to object of legislation
– no drawer of cheques can be allowed to take dishonour of cheques light
heartedly. (Reversed the Madras
High Court Judgement 2001 (2) CTC 595). 2002 (1) CTC 315 SC.

High Court should follow Supreme
Court Judgment – also all courts in India – it is not only matter of discipline
but also mandate of constitution as under Section 141 that law declare by SC
shall be binding on all courts within the territory of India. 2002 (1)
CTC 315 SC.

Director retired – not liable –
form No, 32 also file with registrar of companies on 04-10-1999 – who ceased to
be director on 04-10-1999 shall be deemed to be resigned from date of
resignation i.e., before the commencement of transaction – complaint quashed
against the said director. 2002 (1) CTC 227 = 2001 (2) CTC 78.

It is settled law that threshed
hold High court is not justified in embarking upon enquiry as to reliability
genuineness or otherwise of allegations made in complaint. 2001 (4) CTC
749 SC.

Complaint by Regional manager –
Substitution subsequently - valid - No magistrate can insist that person whose
statement was taken on oath at first instance alone can continue to represent
the company till end. 2001 (4) CTC 749 SC.

Notice first on 29-08-1996 –
Secondly on 07-09-1996 – same copy – valid – service of notice complainant sent
notice on 29-08-1996 returned with endorsement as party not available and not
claimed on 07-09-1996 – complainant sent very same notice dated 29-08-1996 with
covering letter on 07-09-1996 – accused proceed to same on 09-09-1996 – date of
sending of notice has to be construed as 29-08-1996 – 09-09-1996 has to be
taken as actual service – there is no second cause of action and it cannot be
said that notice was sent beyond limitation period. 20101 (4) CTC
617.

Judicial notice – Gazette
notified – retirement valid – discharge petition allowed – dishonoured of
cheque – complaint filed against person who had retired from partnership –
retirement notified in gazette w.e.f. 13-09-1998 – cheque dated 31-12-1998 –
trail court dismissed the discharge petition – High Court set aside order of
trail court and discharged petitioner as his retirement as notified in gazette
did not required any further proof – it is not necessary for petitioner to face
trial. 2001 (4) CTC 399.

Drawer of cheque alone liable –
even it is true that the cheque was issued by the first accused towards the
discharge of the liability of the petitioner/second accused company.
Still the 2nd accused company cannot be prosecuted as it is not the
drawer – Hence the proceedings against the petitioner/2nd accused
which not the drawer is quashed. 2001 (4) CTC 278.

Fine of Rs.65, 000/- by JM
confirmed by SC – after the trial JM II, Kumbakonam convicted the accused U/S
138 and directed payment a fine of Rs.65, 000/- in default simple imprisonment
for one year - the accused granted one month time to pay the fine – directed by
the SC. 2001 (4) CTC 382 SC.

Onus of proof on accused U/S 118
and 139 of NIA Defense evidence must – Presumption to consideration – onus of
proof regarding absence if lawful debt or liability – burden of proving that
cheque had not been issued for debt or dues liability is on accused – formal
denial by accused was held erroneous – accused did not let in evidence to prove
absence of debt or liability - –conviction confirmed. 2001 (4) CTC 3282
SC.

Partners not mentioned in form A
– not liable – Discharge maintained – Prosecution against person who is not
parties – form “A” does not reflect name of revision petitioner as partner at
relevant point of time – High court discharged petitioner relying on entry in
form “A” as it is public document and Judicial notice can be taken.
The petitioner filed an application for discharge from the case. It was
rejected by the trial court – HC discharge the accused in revision. 2001 (4)
CTC 354.

Liability by company – cheque by
employee loan Account – company not liable – Financial liability of company –
employee of company issuing cheque in his individual capacity to discharge
liability to company – company and employee both arrayed as accused –
proceedings against company quashed. 2001 (4) CTC 278.

“Holder” definition – Pay order
issued by Co-operative Bank in favour complainant bank on account of their
customer – complainant bank got assignment of such instrument – Holder means
any person entitled in his own name to possession of cheque and to receive or
recover amount from parties there to – complaint bank was also holder in due
course as they become possessor of pay order before it became payable. 2001 (4)
CTC 183 SC.

Drawer/Drawee – Same person – 138
lies – Bill of exchange must direct certain person to pay particular sum of
money – three persons are not absolutely necessary to constitute bill of
exchange – Phrase directing certain person to pay need not necessarily refer to
third person – Drawer and drawee in bill of exchange could be same person. 2001
(4) CTC 183.

Pay order lies U/S 138 –
Co-operative bank true pay order agreeing to pay complainant bank on account of
particular customer – complainant bank got pay order assign to its name from
customer – complainant bank presented such pay order and it was returned
dishonoured for want of funds – pay order is either bill of exchange or
promissory note – holder of such instrument is entitled to treat it as either
bill of exchange or promissory note in terms of Sec.

17 of NIA – Complainant bank
having elected to treat pay order as cheque, such pay order becomes
cheque. 2001 (4) CTC 183 SC.

1st notice not U/S 138
(b) – 2nd notice valid – No cause of action for 2nd
notice. But if notice U/S 138(b) issued after 15 days no cause of action
for that notice. 2nd notice valid. Once notice as
contemplated U/S 138 (b) is issued within prescribed period of 15 days and no
complaint is filed there on drawer committing default of compliance of such
notice – payee cannot represent same cheque and create another cause of
action. 2001 (3) CTC 309 SC (DB).

Complaint by manager through
power deed for company – valid – Complaint by manager of payee company on the
strength of power of attorney deed is held to be valid. 2001 (3) CTC
301.

Defense evidence must – The
rebuttal does not have to be conclusively established but such evidence must be
adduced before the court in support of the defense that the court must either
believe defense to exist or consider its existence to be reasonably
probable. 2001 (3) CTC 243 SC.

Special `court jurisdiction for
Sec.138. Special court shall have jurisdiction to try offence U/S 138 if
it relates to transactions in securities during 01-04-1991 and 06-06-1992
irrespective of date if commission of defense. 2001 (3) CTC 243 SC.

Section 139 Presumption by law –
presumptions U/S 138 and 139 makes if obligatory on part of court to raise such
presumptions where factual basis has been made for raising such presumption.
2001 (3) CTC 243 SC.

Correction of date should be
within 6 months – The validity of cheque U/S 138(a) is 6 months only, hence if
any correction of date should be done within that period. (Over ruled
SC). (Contra to 2001 (3) CTC 25.) 2001 (1) LW (Crl) 332.

Corrected date – valid – 6 months
from correction. Six months period contemplated U/S 138 would commence
from last corrected date as shown in cheque – accused requested complainant not
to present same for payment immediately and that complainant could correct date
of cheque and present for payment. (Contra 2001 (1) LW (Crl) 332) 2001
(3) CTC 225.

Give severe punishment – The
judicial magistrate are directed to keep in mind the object of providing
stringent punishment and the guide lines given by the Apex court in case 2001
(1) CTC 368, which awarding sentence on the accused who is found guilty of an offence
U/S 138. (Finding para 12) 2001 (2) CTC 595.

HC can alter nature of sentence –
This court can only alter the nature or the extent of sentence of alter the
nature and the extent of sentence but a fresh compensation cannot be awarded
(para 10 finding) 2001 (2) CTC 595.

Before trail – can be discharged
– on perusal of public document. Court is within its power to consider
even materials which accused may produce even before commencement of trial to
decide whether accused is to be discharged – public document can be looked in
to – form 32 is such a document. 2001 (2) CTC 78 = 2002 (1) CTC
227.

Sufficiency of averments –
Authorised signatory – liable. Complaint containing clear averments that
cheques were issued by authorised signatory of company only at instruction of
other directors – they are liable. 2001 (2) CTC 78 = 2002 (1) CTC 227.

Retired director not
liable. Form 32 reveals that 2nd petitioner did not function
as director either on ate of cheque or when cause of action arose for
non-payment – quashed. 2001 (2) CTC 78 = 2002 (1) CTC 227.

Bills of exchange and cheque –
Post dated cheque is bill of exchange till date that bears arrives.
Cheque is also bill of exchange but it is drawn on banker and payable on
demand. Bill of exchange even if drawn on banker is not payable on demand
and is not cheque. 2001 (2) CTC 57 SC.

Date of cheque should be taken –
not date of issue – Six months time commences only from date which cheque bears
and not date on which it was handed over to complainant. 2001 (2) CTC 57
SC.

Cheque issued by company – unless
company liable – other directors not liable. Unless the company is made
liable the question of punishing the person who are anchorage it and are
responsible for business does not arise. Therefore, actual offence should
have been committed by the company and then above the other two categories of
persons U/S 141 (1, 2) become liable. 2001 (1) CTC 725.

Notice to company valid – other
directors not necessary. Notice served on company but not MD and director
who are parties in complaint – is valid notice U/S 138. 2001 (1) CTC
725.

Date of making complaint – is
date for limitation – Making of complaint cannot be equated with taking
cognizance of an offence – Bar by limitation U/S 142(b) applies for “making
complaint” and not for “taking cognizance. 2001 (1) CTC 725.

Cheque should be presented within
six months at paying bank. Cheque should be presented within 6 months
(or) within validity which ever is sooner, at paying bank, not at collecting
bank. 2000 Crl.L.J. 1152 Guj.

Interpretation of law – should
achieve purpose of act. Law should be interpreted in light of objects
intended to be achieved but such law – such interpretation is necessary even it
deviates from general law. 2001 (1) CTC 538.

Giving notice will not make an
offence but receipt of notice must. Giving of notice by payee does not
make an offence and ‘receipt’ of notice by drawer alone gives of action.
2001 (1) CTC 538.

Averments against other directors
– must. Lack of averments as to other directors participation in day
today affairs of company complainant must specifically allege that such person
was in fact in charge and responsible for affairs of company. 2001 (1)
CTC 425.

Condition to pay cheque amount
while suspending sentence – valid. There is nothing unjust or
unconscionable in imposing such condition while suspending sentence for offence
U/S 138 – portion of fine should at least be directed to be remitted in court
if fine is heavy while praying for suspension

No notice to company – but to MD
who signed cheques – valid. No notice was issued to company on behalf of
which cheque was issued – want of notice to company will not invalidate
criminal proceedings against director who issued the cheque – provision for
notice cannot be construed in narrow technical way with examining subject
matter – prosecution is maintainable. 2001 (1) CTC 170 SC.

Entire payment of cheque made –
even then offence is not absolved. Once offence is committed, any payment
made subsequently will not absolve accused if liability of criminal offence but
may have effect in awarding sentence. 2001 (1) CTC 170 SC.

Bank officer need not be
examined. It can be taken as evidence without examine the bank
officers. 2000 MLJ (Crl) 343.

Director not in charge of
business not liable. Director of company who was not in
charge of or was responsible for conduct of business of company at time of
commence cannot be prosecuted as such person does not fall within purview of
sec. 141 of NIA. 2002 (4) CTC 432 SC.

Premature complaint –
valid. Filing of complaint and taking cognizance of an offence –
distinction – mere presentation of complaint in court does not mean that its
cognizance has been taken by magistrate – Date of filing of complaint is not
crucial and date if taking cognizance is relevant – mere presentation of
complaint at an earlier date need not necessarily result in dismissal of
complaint or confer any right upon accused to absolve himself from criminal
liability. 2000 (4) CTC 55 SC.

Complaint presented by P.A., but
signed by complainant – valid. Complaint presented by power of attorney
but signed by complainant himself - complainant need not described as MD –
description of complainant in cause title would not defeat prosecution since
complainant has signed complaint. 2000 (3) CTC 680.

Complaint by “PA” without prior
permission of complaint – valid. Complaint presented by power of attorney
is maintainable even though complaint was not presented after obtaining prior
permission from court – such illegality would not vitiate proceedings. 2000 (3)
CTC 680.

Fine exceeds Rs.5, 000/-
illegal/security of immovable property can be considered. Magistrate
imposing sentence of 6 months and fine of Rs.12.82 lakhs will be paid as
compensation – no compensation can be awarded where sentence is not only
imprisonment but also fine. Para –
8. Accused given immovable properties as securities – (matter
dismissed). 2000 (3) CTC 207.

Authorised signatory – liable.
Authorised signatory of company is liable to be prosecuted. There is no
resolution appointing him by the board – not necessary - plead rejected. 1999
Crl.L.J. 229.

Improving case in counter –
invalid. It is well settled law that it is not open to the respondents to
improve their case by furnishing certain details in counter affidavit.
2000 (3) CTC 137.

Service of notice not mentioned
in complaint/fatal. The only ground on which the learned counsel for the
appellant prays for quashing of the complaint is that on the assertions made in
Para 8 of the complaint, it must be held that notice has not been served - Sec.
138 states that … That being so in the complaint itself having not been
mentioned that the notice has been served, on the assertions made in Para 8 of
the complaint, the complaint itself is not maintainable – quashed. 1999
(3) CTC 164 SC.

Oral power enough. It was
held in AIR Vs, Ramachandran (AIR 1961 Bom 292) that ‘order 6, rule 14 - signed
by any person duly Authorised by him to sign the same’ in rule 14 need not be
restricted to written authorizations. In the authorization is proved,
even an oral authorization should be taken as sufficient’ – though the
said decision is based on order 14 CPC there is no distinction as
far as the authorization is concerned between civil and criminal laws.
1999(3) CTC 143.

(Family members) Other partners
not liable U/S 420 Crl. Proceedings not a short cut. Family members of
accused/drawer of cheque – Crl. Proceedings against them U/S 406 & 420 IPC
held to be an abuse of process of law – quashed. Crl. Proceedings
are not short cuts for other remedies available in law – any how 138
proceedings to be continued. 2000 (2) CTC 107.

Borrowal allegation –
enough. Statement that accused had borrowed money and towards repayment
he had issued cheque – Held there are sufficient pleadings to indicate that
cheques were issued for discharge of existing debt. 1999 (1) LW (Crl)
414.

No plea to prosecute partner for
company – accused not liable. Accused not sought to be prosecuted
in his capacity as officer or person in charged of responsible to conduct of
business of company – complaint against accused liable to be quashed.
2000 Crl.L.J.

2526 AP.

Transfer of cases

o one court – same parties – allowed.
Parties in all cases are same. In interest of justice and also for
convenience of conducting trial complaints directed to be transferred to
Chennai from Hydrabad. 2000 Crl.L.J.2472. SC.

No bar on sick companies.
It commission of office U/S 138 NIA was completed before commencement of
proceedings U/S 22(1) of Sick Industrial Companies Act 2985 there is no
prohibition in maintaining prosecution U/S 142 of the NI Act. 2000 (2)
CTC 548 SC.

Defect in structure cheque not
attract Sec. 138. Structural defect in cheque – cheque returned as not
computerized to honour the same – Sec. 138 will not attract. 98 Crl.L.J.
4750 Bom.

Amount in account left for
particular cheque should be proved. Unless it is shown that such payment
was made towards the amount payable under cheque – proceedings cannot be
quashed. 98 Crl.L.J. 3525 (A) Raj.

Sec. 2 of Power of attorney act.
Power agent can act as donor. The section declares that every thing done
by donee is as done by donor. 98 Crl.L.J. 3870 Guj.

Consideration past/future
valid. A consideration can be past, present or future and therefore,
promise to deliver goods in future can be termed as future consideration, and
if any cheque is given for future consideration, it cannot be said as
unlawful. 1996 Crl.L.J. 3099.

Enhancement of punishment.
Sentence inadequate, hence the same can be modified. 1999 MLJ (Crl)
111.

All partners not liable. It
would be travesty of justice to ask all the partners to prove that the offence
was committed without their knowledge. 1989 SC 1982.

Company not liable if cheque
issued individually. Complaint against 1st accused
company who is not drawer of cheque is not maintainable – Complaint against
company quashed. Cheque issued by 2nd accused in individual
capacity for company. 2nd accused alone is liable. 2000
(2) CTC 443.

Notice and case against MD
valid. Complaint filed against Managing Director who has signed cheque –
Notice issued to signatory of cheque is valid – No infirmity in issuing notices
U/S 138. 2000 (1) CTC 302.

Company not necessary
party. Complaint can be proceeded with as against other person even if
prosecution proceedings against company were not taken. 2001 (1) CTC 94
SC.

Power agent by MD of company –
invalid. Private company filed case – power of attorney agent of MD of
private company has no locus stand in the absence of authorization by means of
company resolution – delegate cannot delegate. 1999 (3) CTC 764.

Notice by drawer – valid.
Cheque can be presented any number of times: - Valid notice – no form of notice
is prescribed under Act to drawer on dishonour of cheque – notice sent by
drawee directing drawer to arrange for payment on re-presentation of cheque and
threatening to initiate criminal action constitutes valid notice for purpose of
this section. Sec.142 – police could not start investigation without
written complaint. 1999 (3) CTC 611 SC.

Cause of action commences
from. Arose after 15 days from the date of return of the notice as
unclaimed. 1999 (3) CTC 358 SC.

Notice returned unclaimed deemed
as served. Payee’s duty is over by dispatching notice. A payee can
send the notice for doing his part for giving the notice. Once it is
dispatched his part is over and the next depends on what the sendee does.
Evading service of notice is deemed served. 1999 (3) CTC 358 SC.

Jurisdiction Territorial.
1). Drawing of cheque 2). Presentation of cheque to bank. 3). Returning
of cheque unpaid by ban. 4) Giving notice in writing to drawer of cheque
demanding payment. 5) Failure of drawer to make payment within 15 days of
receipt of notice – five difference acts were done in fine difference
localities - complainant can choose any one of courts exercising
jurisdiction of any one local area within territorial limit of which any of
those 5 acts done. 1999 (3) CTC 358 SC.

No evidence that accused had
charged his residence or that he had not received notice beyond his control –
plea rejected. 1998 (2) Crimes 191 Kar.

Belated petition U/S 91 Cr.P.C. –
valid. Petition filed U/S 91 Cr.P.C. to prove his case and for
rebuttal of the presumption U/S 138 of NIA – petition filed during examination
U/S 313 Cr.P.C. – Right of the accused can not be nagatived on the ground as
belated. 1999 LW (Crl) I 82.

Authorization not proved –
valid. Complaint filed by company through manager authorization not
produced – existence of authorization not being a pre condition, complaint
maintainable. 1999 I Crl.L.J. 1032. Bom. (Contra 99 Crl.L.J. 419 AP).

Notice to MD valid. Notice
issued to MD and not to company - complaint against company

Maintainable – notice
valid. 1999 (3) CTC 179.

Authorization. If the
authorization is proved even an oral authorization should be taken as
sufficient. 1961 Bom 292.

Other partners not liable.
Initiating prosecution against sleeping partners or own, when the company is
main offender cannot sustained. 1992 LW (Crl) 120.

Other partners not liable.
There may be ladies and minors who were admitted for the benefit of partnership.
They may not know anything about the business of the firm. It would be
travesty of justice to prosecute all partners and ask them to prove under the
proviso to sub section (1) that the offence was committed without their
knowledge. 1989 SC 1982 = 1983 Crl.L.J.159.

JM can fine more than
Rs.5000/-. JM can impose more than Rs.5, 000/- in view of the Sec. 142 of
NI Act. (Dissented by Raman J.) 1999 Cr.L.J.968 Mad. = 1999 (2)
CTC 652 (FB).

Abetment charges – invalid.
MD and salesman of company at relevant time are not liable for refund of amount
by present MD – No abetting charges against them are liable U/S 138. 1999
I Crl.L.J.75.

Time not necessary. Firm
need not be included as accused unless

(1). It is established
that the firm alone was liable to discharge liability.

(2). Return memo issued
after 10 days by bank, notice issued within 15 days after the
said

10 days valid. 1999 Crl.L.J.934,

Authorization not produced –
valid. Complaint filed by company through manager authorization not
produced – existence of authorization not being a pre condition – complaint
maintainable. 1999 I Crl.L.J. 1032 (Contra 99 Crl.L.J. 419 AP)

Deposit of amount – not
enough. Deposit of amount by accused in account not sufficient to hold
that that offence U/S 138 is not made out. Unless it is shown that such
payment was made towards the amount payable under cheque. 1998
Crl.L.J.3525 (A) Raj.

Company not necessary.
Company need not be added as accused (based on 1984 SC 1824) (should be added
1988 SC 1123). 1998 Crl.L.J.4758.

Limitation. Period of 1
month for filing complaint will be reckoned from the day immediately following
the day on which 15 days of receipt of notice expires. 1999 Crl.L.J. 1822
SC.

Discharge not maintainable.
There is no provision for the summons cases to file an application for
discharge under Sec. 245 Cr.P.C. that too after the witness have
examined. 1999 Crl.L.J. 2236 Mad. (B).

Notice – without time. Without
mentioning any time in the notice if the complainant approaches the court after
15 days, the complaint is maintainable. 1999 Crl.L.J. 2010 Mad.

Notice in writing/fax.
Notice through registered post as well as fax. Fax reached the same day –
cause of action starts running – complaint filed after 15 days of receipt of
registered post – not maintainable – should have filed within 30 days of
receipt of fax notice. 1999 (2) CTC 354 SC.

Payment stopped/Account
closed. Dishonouring cheque on ground that account was closed is
consequence of act of drawer bringing his account to ‘Nil amount’ – such
dishonour of cheque would attract Sec. 138 – Sec. 138 would become dead letter
if instruction issued to bank to stop payment immediately after issuing cheque
against debt or liability. 1999 (2) CTC 347 SC.

Documents of theft not necessary
for 138. Documents relating to theft of cheque are held to be not
relevant in criminal proceedings relating to dishonour of cheque. 1999
(2) CTC 298.

Cause of action arises only
once. Once notice issued and accused failed to pay the amount within 15
days, the cause of action arose, and complaint has to be filed. No notice
2nd time can be issued. Any number of times cheque can be
presented for collection, but notice only once can be issued. 1998 (2)
CTC 462.

Partners not liable.
Partners who are not responsible for day today affairs of firm need not be
arrayed as accused. Since they are only sleeping partners, they are not
liable to be tried. 1998 (2) CTC 548.

Demand of more amount than
cheque. Statutory notice demanded more amounts then cheque is
valid. 1998 (2) CTC 548.

Time in notice – not
necessary. Mentioning of any period in notice within which payment of
cheque is to be made – not necessary. 1998 Crl.L.J. 2309 Raj.

Authorization to company – not
necessary. Complaint filed by company – objection that no authorization
given by company to director – plead rejected – The person who is in charge and
responsible for conduct of the business of the company can file. 1998 I
LW 354.

One month – Definition.
Definition ‘one month’ in Sec.3 (35) of General clauses act to be
followed and hence it cannot be restricted to period of 30 days – ‘one month’ –
in Sec.142 refer to calendar month (Jan,29,30,31 X Feb.28/29). 1998 I LW
(Crl) 264.

Allegations on partners
must. To bring persons within the purview of Sec. 138 NI Act there must
be an allegation prima facie disclosing of commencement of offence of directors
or partners. 1998 I LW 24.

01/06/2003

04-01-2004

Holidays acceptable – Company
not necessary M.D. enough - Plea that presentation of cheque about
6 months 2 days after its issue and complaint not sustainable –
rejected. Intervening of period of public holidays on the day of expiry
of cheque to be excluded Under section 25 – company functions through human
agency. Hence, M.D., in individual capacity cannot escape from his
liability – complaint maintainable. 1998 II LW (Crl) 6111.

Good used/plea goods not good –
stop payment – Acquittal of accused that communication to stop payment –
acquittal set aside. – Having consumed almost entire materials, the stop
payment instruction to bank, can under no stretch of imagination protect the
respondent from liability U/S 138. 1998 II LW (Crl) 637.

Security – plea that cheques were
issued only as security and unless the sale transaction of the property is
completed the petitioner is not liable to make any payment – rejected.
1998 II LW (Crl) 640.

Power agent substituted
maintainable – Company can be represented by person authorized afresh – Power
agent can be substituted. 1997 II CTC 675.

Imprisonment alone to be
suspended by High court but not both imprisonments and fine. 1998 L.W.
(Crl) 239.

Holder in due course – Execution
proved – legal presumption would arise that consideration was passed on at time
of execution – claim that assignee was not holder in due course – No evidence –
claim rejected. 1997 AIR Mad 1 (S.118 NT Act)

Notice unclaimed - has to
be proved by complainant at the time of trial. 1993 I MWN 336 = 1998 SC
630.

Limitation for representation –
If the return is by time limit it deemed to be with in the custody of
court. 1995 I LW (Crl) 300.

Plea of failure to mention date
of dishonour in statutory notice is rejected. 1995 I LW (Crl) 264.
Janarthanam J.

Without impleading company as
accused – not maintainable. Section 319 Cr.P.C., for Impleading any other
person as co accused will not have effect of curing the infirmity.. 1995
I LW (Crl) 132. Rangasamy J.

Cheque is not negotiable after
being dishonoured, it cannot be endorsed again. 1989 I LW 401.

Refer to drawer – Insufficiency
of funds, exceeded the arrangement – questions involved determination on
evidence without having come on record it will not be appropriate for the
petitions to invoke the inherent powers of quash. 92 MWN II 184.

Praying for issue of summons
under 420 IPC in the course of 138 trial – rejected. 1994 LW (Crl)
55.

Dismissed for default – On the
ground of absence of complainant, again cheque presented – again same
procedures – complaint can be taken for fresh cause of action. 1994 LW
(Crl) 53.

Power of attorney agent is
virtually the payee himself or holder in due course. 1994 LW (Crl)
34.

Cheque can be presented any
number of times within its validity – There is no infirmity in it. 1993 LW
(Crl) 627.

“For the discharge in whole or in
part of any debt” – Absence of such averment the complaint is ought to be
quashed. 1993 LW (Crl) 600.

Acquittal Under Section 256 of
Cr.P.C., - Valid, if no reason is assigned for the absence of the complainant –
revision dismissed. 1992 (2) MWN .

Stop payment will not affect the
case before it is proved that sufficient funds are in account. 1992 (2)
MWN.

There is no bar for presentation
of the cheque at a later point of time also and if it is was dishonoured
certainly the offence is made out. 1992 MLJ (Crl) 618.

Sole proprietary concern –
impleading of the company is not necessary – plea that failure to implead the
company as accused will vitiate the prosecution, rejected. 1993 LW (Crl)
273.

Cheque presented to bank for
collection on various dates and returned as “insufficient funds” – plea that
142 contemplates only a single cause of action – rejected. 1993 LW (Crl)
270.

Expiry of 45 days time – Bar of
limitation where the complaint is filed after expiry of 45 days from the date
of return of the notice. 1993 LW (Crl) 105.

Refer to drawer – This and other
contentions involved on evidence to be adduced and the matter cannot be decided
on a petition to quash the proceedings. 1992 LW (Crl) 536.

Payment stopped – Duty of the
complainant to include necessary averments as would disclose an offence on a
reading of the complaint – failure to make the same – proceedings liable to be
quashed. 1992 LW (Crl) 367.

Payment stopped – Allegations
that the accused did not have sufficient funds will bring the complaint under
Section 138. The allegations have to be proved only at the time of trial
and proceedings cannot be quashed at this stage. 1992 LW (Crl) 307.

Evasive of notice – The
deliberate evasion of receipt of registered notice would be a constructive
service. 1991 LW (Crl) 576.

Proceedings in 1st
occasion of dishonour, if not taken it is not a bar of limitation of the same
subsequently. 1991 LW (Crl) 481.

Notice in writing is need not
necessarily be only by a registered post and it can be as well as by telegram
or by a letter. 1991 LW (Crl) 468.

Proprietor concern – Proprietor
himself is enough for prosecution – His concern need not be added as
party. 1991 LW (Crl) 347.

Company should be added – Unless
the company is made an accused the M.D. and others cannot be made as
accused. 1991 LW (Crl) 513.

Suit based on a promissory note
instituted by a nationalized bank claming interest at the rates higher than the
rate mentioned in promissory note – Interest of higher rate. Held can be
allowed, only when it is agreed to by the debtor – Directives of Reserve bank
to the nationalized bank not relevant. 1990 I LW. 1. Syndicate Bank,
Pollachi Vs. Muthaiyan and another.

Imperfect notice – cheque amount
not mentioned in notice - Notice was for loan amount – Not for cheque amount –
Loan amount and cheque amount is different – demand for amount covered by
bounced cheque is absent in notice - demanding other than cheque amount will
not make the notice invalid – but demand for cheque amount should be made
clearly. 2003 (4) CTC 252 (SC)..

Claming more than cheque
amount in notice – not invalid – Claiming Rs.300/- i.e., cost of notice other
than cheque amount will not be ground for quashing the complaint. 2003
(4) CTC 76.

Discharge maintainable in 138
cases – It is true that discharge does not arise in a summons case. But
even if the petitioner prays for discharge in such cases we cannot give a
restrictive meaning to the word discharge, instead we can interpret if as
dropping the proceedings against them. (As charges could not be framed in
summons cases, the question discharge does not arise). 2003 Crl.L.J.
4373.

Will - Attestation must be proved
– to mark document. Factum of execution of will is not sufficient in law
unless due attestation of will is proved – Documents required to be attested in
law cannot be used as evidence unless attestation is proved. 1995 (2) CTC
476.

Benefit of doubt – infavour of
accused. Standard of proof – Accused cannot be expected to prove
defense strictly – when accused is able to probablize his case, then
grave doubt is created in prosecution case – acquitted. 2002 (3) CTC
99.

Account books to be proved each
item. Mere proof of the existence of certain entries in books is not sufficient
– law requires proof not only of account books but also of each item. 97
(3) LW 662. (Sec.34).

Account books to be proved by
party relies them. It is for the party who puts forwards accounts to
explain them in such a way - Mere account books without more does
not prove anything. 97 (1) LW 1 (Sec.34).

Abstained witness adverse
inference. If such a party abstains from entering the witness box if
must give rise to an inference adverse against him. 2001 I LW
178.

Section 63 – Copy of document
procedure – Party should prove that copy was made from original and compared
with original to admit copy as secondary evidence. 2001 (1) CTC 12.

CRIMINAL PROCEDURE CODE

Sections 156 & 174.
Failure of mention name of witness in first information report and
inquest report as one who witnessed occurrence - cards serious
doubt in presence of witness at time of occurrence. 1997 MLJ (Crl)
496.

Section 125. Maintenance in
arrears for one year alone can be claimed. 1997 I LW (Crl)
213.

Section 91 - Send for –
Plea rejected. This court has already cautioned against undertaking a
roving enquiry into the pros and cons of the case by weighing the evidence or
collecting materials as if during the course or after trial vide. (79(3) SCC
4). 2000 (3) CTC 55 SC.

Section 125. Wife employed
– valid for maintenance. Meaning of living. Even it the wife is employed
she can claim for maintenance. 2000 I MWN 13. 97 II LW (Crl)
572.

Section 204. Certified copy
of complaint – Accused entitled. Right of accused to obtain private complaint
copies of complaint on receipt of summons but before his appearance in court –
accused is entititled to. 2001 (1) CTC 24.

Section 125. One month or
on payment – respondent shall be released. Magistrate cannot impose
sentence continuously on respondent in custody one month or payment time which
ever is sooner can be released. The petitioner has to come again for the
same remedy if payment not made. 99 Crl.L.J. 5060 SC.

Section 73. Case can be
spited. If the NBW is not possible to execute on the other accused, the
appearing accused can ask for split of the case. The prosecution need not
file any application for that. 99 Crl.L.J. 763.

Section 420.IPC Default in
paying installments – 420 will not lie. Accused entering into finance
agreement with complainant for purchase of dental chairs and committing default
in repayment – complaint not making out fraudulent or dishonest intention –
quashed. 2001 (1) CTC 624.

Section 478.
Limitation. Under Sub-section 2 share the offence for which the accused
is charged is punishable with fine only, the prosecution must be lunched within
6 months from the date of commission of the offence – within one year
imprisonment, limitation is one year – Between 1 and 3 years imprisonment
limitation 3 years – other imprisonments no limitation is prescribed. AIR
2000 SC 297.

Section 482. Criminal proceeding
against family members invalid. Before issue process criminal court has
to exercise great deal of caution – It is serious matter as far as accused is
concerned – when complainant lodges complaint. 2000 (2)
CTC 107.

Section 205. Can be filed for 1st
appearance in 138 Cases. Magistrate can use his judicial discussion and
dispense with personal appearance of accused even in his first appearance and
record plea of counsel – such discretion to be exercised in rate instances
where due to geographical distance or physical condition of accused or other
good reasons. 2001 (3) CTC 698 SC.

Section 391. Additional
evidence. Additional evidence at the time of appeal – by complainant – no
filling up if lacuna – allowed. 2020 (3) CTC 161.

Section 200 & 201.
Judicial process should not be used as instrument of oppression or needless
harassment – private complaint should not be allowed to be use as means to
wreck personal vengeance or vendetta. 2003 (1) CTC 467.

Section 200. Private
complaint – when can be entertained. Private complaint can be entertained
only when complaint to police is either refused to be registered or after
entertaining complaint police has referred the case as mistake of law of fact
or undetectable case or case of civil nature – Magistrate cannot usurp
jurisdiction of police by entertaining private complainant at the first
instance without prior complaint to police. 2003 (2) CTC 270.

Section 473. Section 473 is
not applicable for extension of time for filing for any other acts. 2001
(1) CTC 725.

Section 311. Defects cannot
be cured by marking document in belated stage. Prosecution cannot be
allowed to fill up lacuna by filing petition U/s 311 and examine a
witness in support therefore – defects cannot be cured by marking of a document
at a belated stage and examining witness thereof. 2000 Crl.L.J.
624.

Section 311. After closure
of evidence – not allowed to fill up lacuna. Application filed after
closure of evidence on the side of complainant – prosecution cannot be allowed
to fill up lacuna – as if caused prejudice to accused – defects cannot be cured
at belated stage. 2002 (2) CTC MWN 222.

Section 311. Petition after
arguments – careless prosecution – not permitted. Petition filed after
the evidence was closed and after the questioning of the accused and arguments
were addressed – failure of prosecution to conduct the case with not a ground
to rectify such latches. 1991 LW (Crl) 42.

9/12/2004

Averments – Complaint against
partners firm – Averments in complaint that accused at relevant point of time
were in charge and responsible for the conduct of its business –In absence of
said requisite averment complaint, offence against accused can not be made out
– Discharge of accused proper- 2004 Crl.LJ.-4249

Retirement of partner from the
firm – petitioners ceased to be partners of firm even before issuance of dis
honoured cheques – date of dissolution not mentioned in reply notice -
public notice as contemplated u/s 72 0f Partnership Act not given – liable to
as partners – mater for trial – cant quash – 2004 Crl.LJ- 302 NOC.

Money lender – Complainant
claimed to be a money lender but not produced a license for the same – No
legally enforceable debt of accused – acquittal of accused proper. 2004
Crl.LJ-4019

Drawer of cheque alone liable –
Cheque issued by one of the directors of company in which petitioner is
managing partner – Company has to pay some amount to complainant – Petitioner
is not liable for the cheque not issued by him. 2004 Crl.LJ-4079

Account books not produced – it
cannot be said that factual basis for raising presumption had been established
– complainant can be said have failed to discharge initial burden that there
was legally enforceable debt – dismissal of complaint proper. 2004 Crl.LJ
4107

Trial court to decide the
liability of a partner – whether any or all directors or partners were really
in-charge of and responsible for conduct of business – it is not duty of high
court to cause any interference under any pretext even if prima facie on
complaint anyone is made an accused being director or partner. VKJ – Crl.LJ –
4326

Power of attorney filed complaint
in name of and by payee firm and it is in writing – complaint not signed by
complainant – eligibility criteria satisfied – firm could authorize any person
to act for and on behalf of firm – complaint filed by POA is proper and tenable
– no illegality in taking cognizance of offence – 2002 Crl.LJ 261 AP not good
law in view of AIR 2002 SC 182 = 2002 Crl.LJ 266 – 2004 Crl.LJ – 4119

3 comments:

hi I have issued a cheque of rs 10000, before the payment date i have stop payment of the same as found drawee is not the correct person to receive it . All the documents I have regarding stop payment. Now my bank wrongly dishonored the cheque due to insufficiency fund in my account and I got a legal notice for that. What should I do.